The Court of Appeal has ordered Jackson Way Properties Limited and James Patrick Kennedy to pay the Information Commissioner’s costs of their unsuccessful appeal over a refused freedom of information request to Dún Laoghaire/Rathdown County Council.
In a costs ruling delivered on 8 December 2022, Mr Justice Binchy said the Commissioner had been entirely successful in the appeal and was entitled to recover the costs incurred in it. Justices Donnelly and Noonan agreed with the order and reasons.
The appeal concerned the Commissioner’s decision to uphold the council’s refusal of the request under section 15(1)(c) of the Freedom of Information Act 2014. That provision allows a request to be refused where handling it would require retrieving and examining records to an extent that would substantially and unreasonably disrupt an FOI body’s work.
The Court of Appeal had dismissed the appellants’ challenge to the High Court’s decision on 30 September 2022. The costs ruling records that the appellants had argued the usual rule should not apply because the statutory provision was unclear and the appeal judgment would clarify its meaning for the Commissioner, public bodies and FOI requesters. They also relied on the public importance of the issues and sought some or all of their costs, or alternatively no costs order.
The Commissioner opposed that request, arguing that the provision was not unclear, the case largely turned on its facts, and the appeal pursued a private advantage. The Commissioner also argued that the statutory provision allowing an FOI body to bear costs in certain appeals was not engaged: no such application had been made in the High Court, and the appellants had not identified a point of exceptional public importance.
Justice Binchy distinguished the appeal from an earlier costs case, Lee v The Revenue Commissioners. He said that case involved an ambiguous statutory provision and an issue of systemic importance, while this appeal involved a straightforward interpretation of section 15(1)(c). He found no exceptional public importance for the purposes of section 24(8) and said that clarification in the judgment did not establish that clarification had been needed.
The court therefore made no departure from the general costs rule under section 169(1) of the Legal Services Regulation Act 2015. Its order was limited to the costs incurred in the appeal.